Author: Blank Rome LLP

Natasha Romagnoli, Steven J. Roman, Anna K. Milunas, and Amit Roitman ●

New York’s Child Victims Act (“CVA”), which opened a one-year revival window extending the statute of limitations for claims of childhood sexual abuse, had a substantial impact on the state’s businesses and other institutions. The impact of New York’s Adult Survivors Act (“ASA”), signed into law this summer, will be even greater.

In Part 1 of this two-part series, we covered the implications of the ASA, preparing for ASA claims, and insurance coverage for sexual abuse claims.

This post (Part 2) gives practical guidance on how to prepare for and mitigate your risk under the ASA.

Locating Coverage Years—or Decades—After the Fact

Locating old insurance policy documents can be difficult, time consuming, and sometimes ultimately fruitless. Like some of the most famous texts of antiquity, we can today only catch glimpses of them in fragments or passages quoted and requoted in other texts down the centuries. The analogy serves as a reminder that the absence of coverage documents from the period in question does not signify an absence of coverage.

In sexual abuse cases, the state of New York encourages a generous interpretation of evidence of past insurance coverage, no matter how scant. In the courts, defendants can use secondary evidence such as policy renewal documents, supplementary policy documents from the period, letters and meeting minutes, and even certificates of insurance to establish the coverage in place at the time of the abuse. During the CVA revival window, the state’s Department of Financial Services asked insurers to go above and beyond and “act in good faith” in determining historical coverage, “so that victims will be compensated.”

Whether the same spirit will be brought to bear on ASA cases remains to be seen. While New York has been clear in its commitment to restorative justice for sexual abuse survivors, having the actual documents in hand allows targeted entities to develop a detailed defense strategy well in advance of the anticipated trial. Businesses and other organizations that believe they could be named as defendants under the ASA should begin the work of locating old policies now.

Natasha Romagnoli, Steven J. Roman, Anna K. Milunas, and Amit Roitman ●

New York’s Child Victims Act (“CVA”), which opened a one-year revival window extending the statute of limitations for claims of childhood sexual abuse, had a substantial impact on the state’s businesses and other institutions. The impact of New York’s Adult Survivors Act (“ASA”), signed into law this summer, will be even greater.

During the CVA’s revival window, survivors filed almost 11,000 lawsuits against schools, camps, healthcare providers, religious organizations, and other institutions regularly serving children. Not all of these entities had insurance coverage for sexual abuse claims, and several ended up in bankruptcy as a consequence. The influx of cases also affected state and federal courts, adding to the backlog caused by pandemic shutdowns and precautions. The CVA’s window closed in August 2021, but a year later very few CVA cases have made it to trial. It could be years before the majority of CVA cases are resolved.

The ASA’s impact on businesses, organizations, and courts is likely to dwarf the CVA’s. The ASA opens a one-year window on November 24 of this year, allowing sexual abuse survivors who were 18 years old or older when the abuse took place to file claims against their abusers, even if the statute of limitations is long expired. Like the CVA, the ASA allows claimants to name vicarious liability defendants as well as individual perpetrators. This means any organization involved in creating the conditions for the abuse is susceptible to ASA lawsuits.[i] Because so many more organizations serve, employ, and interact with adults than with children, the ASA’s reach—and the number of claimants involved—will be exponentially longer than the CVA’s.